SANHEDRIN 41 (4 Elul) - Dedicated l'Iluy Nishmas Chaim Yisachar (ben Yaakov) Smulewitz of Cleveland on his Yahrzeit, by his daughter and son in law, Jeri & Eli Turkel of Raanana, Israel.

1)THE SOURCE FOR WARNING BEFORE KILLING

(a)Question (Ula) What is the source that warning is required?

(b)Answer #1 (Ula): "V'Ish Asher Yikach Es Achoso... v'Ra'ah Es Ervasah";

1.Question: Is he liable for seeing her Ervah?!

2.Answer: Rather, he is liable only if they explained to him the Isur.

3.Surely, this is not needed for Kares (at the hands of Heaven. Hash-m knows whether he was Mezid or Shogeg), so we use it to teach about lashes.

(c)Answer #2 (d'Vei Chizkiyah): "V'Chi Yazid... Lehorgo b'Armah" - even after he was warned, he is still Mezid.

(d)Answer #3 (Tana d'Vei R. Yishmael): "Ha'Motze'im Oso Mekoshesh Etzim" - even after they warned him, he continued gathering.

(e)Answer #4 (d'Vei Rebbi): "Al Davar Asher Inah" - due to the Dibur (he was told not to).

(f)The Torah needed to teach all these verses.

1.Had it taught only about a sister, one might have thought that warning is needed for lashes, but not for death penalties;

2.Had it taught only about a murderer, one might have thought that warning is needed for death by the sword, but not for stoning;

(g)Question: Why do we need two verses about (Shabbos and a Na'arah Me'urasah (an Arusah than six less than six months after becoming Bas Mitzvah), which are both punishable by) stoning?

(h)Answer - part 1: According to R. Shimon, who says that burning is more severe, the extra verse teaches about burning;

(i)Answer - part 2: According to Chachamim, who say that stoning is the most severe, even though we knew burning from a Kal va'Chomer, the Torah wrote a word enabling us to expound it.

(j)Question: It would suffice to teach about stoning, and the others (including lashes and the sword) follow from a Kal va'Chomer!

(k)Answer: Here also, even though we knew burning from a Kal va'Chomer, the Torah wrote a word enabling us to expound it.

(l)(Beraisa): He agreed to be killed for his transgression.

(m)Question: What is the source that he must do so?

(n)Answer (Rava): "Yumas ha'Mes" - he is already called dead, i.e. he agreed to be killed.

2)KILLING WITHOUT WARNING

(a)(Rav Chanan): If witnesses testified that a Na'arah Me'orasah was Mezanah, and then they were Huzmu, they are not killed, for they can say 'we did not intend to kill her. We intended only to forbid her to her husband.'

(b)Question: (Surely they intended to kill her, for) they warned her! (If not, we could not kill her.)

(c)Answer: The case is, they did not warn her.

(d)Question: If so, she cannot be killed!

(e)Answer: The case is, she is a Chaverah (Chachamah), so she did not need to be warned, according to R. Yosi b'Rebbi Yehudah;

1.(Beraisa - R. Yosi b'Rebbi Yehudah): A Chaver does not need to be warned, for warning is merely to distinguish between Shogeg and Mezid.

(f)Question: If they cannot be killed, how can she be killed? We cannot apply the law of Hazamah (to do to the witnesses what they sought to do). Such testimony is invalid!

(g)Answer: Indeed, Rav Chanan meant that because the witnesses cannot be killed (for they can say that they did not intend to kill her), she is not killed either (because we cannot apply the law of Hazamah).

(h)Question: What is the case of a Chaverah who is killed without warning according to R. Yosi b'Rebbi Yehudah?

(i)Answer: She was Mezanah twice. (She was already forbidden to her husband after the first time. Surely the second testimony was to kill her.)

(j)Question: The witnesses can say that they did not intend to kill her, only to forbid her to the second adulterer!

(k)Answer #1: She was Mezanah with the same man both times (she was already forbidden to him).

(l)Answer #2: She was Mezanah (the second time) with a relative (who is forbidden to her in any case).

(m)Question: Why did Rav Chanan teach about a Na'arah Me'orasah? The same applies after Nisu'in!

(n)Answer: It is a bigger Chidush that the witnesses can say that they intended to forbid her to her husband even though she never lived with him yet.

3)CONTRADICTORY TESTIMONIES

(a)(Rav Chisda): If one witness says that he killed with a sword, and the other says that he used an ax, the testimonies do not match;

1.If one says that his clothes were black, and the other says that they were white, the testimonies join.

(b)Question (Beraisa): "Nachon" - the testimonies must match;

1.If one witness says that he killed with a sword, and the other say that he used an ax, or one says that his clothes were black, and the other says that they were white, these do not match.

(c)Answer (Rav Chisda): The Beraisa discusses one who choked the victim with his garment. This is crucial to the testimony, just like the sword or ax.

(d)Question (Beraisa): If one witness says that his shoes were black, and the other says that they were white, these do not match.

(e)Answer: The case is, he killed him by kicking him with his sandal.

(f)Question (Mishnah): A case occurred in which Ben Zakai asked them if the figs on the tree had large or small stems (and disqualified the testimony because the witnesses disagreed).

(g)Answer #1 (Rami bar Chama): The case was, he was Chayav Misah for picking a fig on Shabbos.

(h)Rejection (Beraisa - Chachamim): He killed him under a fig tree.

(i)Answer #2 (Rami bar Chama): The case was, he killed him with a fig branch.

(j)Question (Beraisa): (Ben Zakai) asked the witnesses 'did the figs on the tree have small or big stems? Were they white or black?' (even though this is not crucial to the testimony).

(k)Answer (Rav Yosef): We cannot refute Rav Chisda from Ben Zakai. Ben Zakai treats Bedikos like Chakiros (but Chachamim argue).

(l)Question: Who is this Ben Zakai?

1.Suggestion: It is R. Yochanan Ben Zakai.

2.Rejection: He never sat on a Sanhedrin (that judged capital cases)!

i.(Beraisa): R. Yochanan Ben Zakai lived 120 years. He engaged in business for 40 years, he learned for 40 years, and he taught for 40 years.

ii.(Beraisa): Forty years before the Churban, the Sanhedrin was exiled to Chanus (a place).

iii.(R. Yitzchak bar Avdimi): After they exiled themselves, they did not judge fines.

iv.Objection: That is unreasonable! (Fines do not depend on the Great Sanhedrin sitting in Lishkas ha'Gazis.)

v.Correction: Rather, afterwards they did not judge capital cases.

vi.(Mishnah): After the Churban R. Yochanan Ben Zakai enacted... (Since he lived after the Churban, the Sanhedrin was exiled more than 40 years before he died, i.e. before he taught. Surely, he was not on the Sanhedrin before he taught!)!

(m)Answer #1: He was someone else whose father was named Zakai.

1.Support: R. Yochanan ben Zakai would not be called Ben Zakai (without any title).

(n)Rejection (Beraisa): A case occurred in which R. Yochanan Ben Zakai asked them if the figs on the tree had large or small stems.

(o)Answer #2: It was Yochanan ben Zakai when he was a Talmid;

1.He suggested asking about the figs. Chachamim approved, and it was recorded in his name.

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2.Our Mishnah calls him Ben Zakai, for he was still learning at the time (he was not yet called Raban, or even Rebbi);

3.The Beraisa calls him R. Yochanan Ben Zakai, for he later became the teacher of Yisrael.

4)THE DIFFERENCE BETWEEN CHAKIROS AND BEDIKOS

(a)(Mishnah): The difference between Chakiros and Bedikos... (if a witness, or even both witnesses cannot answer Bedikos, their testimony is valid).

(b)Question: Why does it say even if both witnesses cannot answer? Since one witness need not answer, surely the other need not know either!

(c)Answer #1 (Rav Sheshes): This refers to the Chakiros, e.g. when there are three witnesses;

1.The Mishnah teaches that even if two witnesses can answer and one cannot, the testimony is disqualified.

2.This is like R. Akiva, who equates three witnesses to two. (Just like if one of two witnesses cannot answer a Chakirah, their testimony is disqualified, also if one of three cannot answer.)

(d)Rejection (Rava): It says 'even if... their testimony stands'!

(e)Answer #2 (Rava): The Mishnah means, even regarding Chakiros, if two of three witnesses can answer a Chakirah and one cannot, the testimony (of the two) stands.

1.This is unlike R. Akiva.

(f)Question (Rami bar Chama - Mishnah): If a witness cannot answer a Chakirah, his testimony is disqualified. If a witness, or even both witnesses cannot answer Bedikos, their testimony is valid.

1.Bedikos are also mid'Oraisa. Why is their law different?

(g)Answer (Rav Kahana and Rav Safra): If a witness cannot answer a Chakirah, he cannot be Huzam (since he did not specify when or where he saw the testimony), therefore his testimony is disqualified;

1.Even if he cannot answer Bedikos, he can be Huzam.

5)A MISTAKE IN THE DAY OF THE MONTH

(a)(Mishnah): If one witness... (we assume that one of them did not hear that the month was Me'ubar).

(b)Question: How far into the month do we assume this?

(c)Answer (Rav Acha bar Chanina): It is until the majority of the month has passed.

(d)Support (Rava - Mishnah) If one witness says 'it was the third', and the other says 'it was the fifth', their testimony is disqualified.

1.We do not say that the latter did not hear about two Ibur months. We must say that after the majority of the month, everyone knows about the Ibur.

(e)Rejection: Perhaps even after the majority of the month, not everyone knows, but people (usually) hear the Shofar used to announce Rosh Chodesh;

1.We can say that a person did not hear about one month, but we do not assume he did not hear for two consecutive months.

6)UNTIL WHEN MAY ONE SAY KIDUSH LEVANAH?

(a)(Rav Acha bar Chanina citing R. Yochanan): One may bless on the new moon until its deficiency is filled.

(b)Question: When is this?

(c)Answer #1 (R. Yakov bar Idi): It is until seven days after the Molad (new moon).

(d)Answer #2 (Chachamim of Neharde'a): It is until the 16th of the month.

OTHER D.A.F. RESOURCES ON THIS DAF